In re H.F. , 120 Ohio St. 3d 499 ( 2008 )

[Cite as In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-6810.]
IN RE H.F. ET AL.
[Cite as In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-6810.]
Juvenile court — Appeal — An appeal of a juvenile court’s adjudication order of
abuse, dependency, or neglect and the award of temporary custody
pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of the
judgment entry pursuant to App.R. 4(A).
(Nos. 2008-1036 and 2008-1037 – Submitted October 1, 2008 – Decided
December 31, 2008.)
APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County,
Nos. 90299 and 90300, 176 Ohio App. 3d 106, 2008-Ohio-1627.
__________________
SYLLABUS OF THE COURT
An appeal of an adjudication order of abuse, dependency, or neglect and the
award of temporary custody pursuant to R.C. 2151.353(A)(2) must be
filed within 30 days of the judgment entry pursuant to App.R. 4(A).
__________________
LANZINGER, J.
{¶ 1} In this case, we are asked to determine whether a juvenile court’s
adjudication order must be appealed within 30 days from the entry of judgment or
whether App.R. 4(B)(5) authorizes a second opportunity to appeal after the final
disposition order. We hold that App.R. 4(B)(5) does not apply and that an appeal
of a juvenile court’s adjudication order of abuse, dependency, or neglect and the
award of temporary custody pursuant to R.C. 2151.353(A)(2) must be filed within
30 days of the judgment entry pursuant to App.R. 4(A).
Case Background
SUPREME COURT OF OHIO
{¶ 2} On February 6, 2006, appellant, Cuyahoga County Department of
Children and Family Services (“CCDCFS”), removed H.F. from the custody of
his father, appellee S.F., and filed a complaint for neglect and temporary custody.1
Eight days later, CCDCFS filed a separate complaint for abuse, neglect,
dependency, and temporary custody of R.F.2 The children’s mother did not
appear at the adjudication hearing,3 and appellee admitted the allegations in the
amended complaints. The magistrate recommended that H.F. be found neglected,
that R.F. be found abused, neglected, and dependent, and that both children be
placed in the temporary custody of CCDCFS. The juvenile court considered the
matters in May 2006, approved the magistrate’s decisions, placed H.F. and R.F. in
temporary custody, and notified appellee of his right to appeal. The order
concerning H.F. was entered on June 5, 2006, and the order concerning R.F. was
entered on June 7, 2006. No appeal was filed.
{¶ 3} On May 4, 2007, CCDCFS filed motions to modify temporary
custody to permanent custody.4 The court held a hearing on the motions on July
26, 2007; although he was represented by counsel, appellee did not appear. After
receiving testimony and reviewing the recommendation of the guardian ad litem,
the juvenile court terminated appellee’s parental rights and granted permanent
custody to CCDCFS.
{¶ 4} Three days after the juvenile court entered its orders, appellee filed
an appeal with the Cuyahoga County Court of Appeals. In his first assignment of
1. H.F. had previously been adjudicated abused, neglected, and dependent while with his mother
and was placed in the legal custody of appellee.
2. R.F. had been removed from her mother’s custody shortly after she was born. Appellee’s
paternity of R.F. was established after the filing of the complaint.
3. H.F. and R.F.’s mother is not a party to this appeal.
4. CCDCFS had filed previous motions to modify custody, but those motions were withdrawn,
and temporary custody was extended.
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January Term, 2008
error, appellee contended that when the juvenile court accepted his admission at
the February 2006 adjudicatory hearing, the court failed to comply with Juv.R. 29,
which requires the court to personally address a party to ascertain whether
admissions are made voluntarily and with an understanding of the rights being
relinquished. In opposition, CCDCFS argued that the appeal of this issue was
untimely because the adjudication of neglect, abuse, and dependency had not been
appealed within 30 days of the juvenile court’s orders. Relying on In re A.C., 160
Ohio App. 3d 457, 2005-Ohio-1742, 827 N.E.2d 824, and In re S.G., 8th Dist. No.
84228, 2005-Ohio-1163, the court of appeals held that appellee could appeal at
two points: either after the juvenile court’s orders adopting the magistrate’s
decision concerning the adjudication hearing or after the juvenile court’s orders
from the final dispositional hearing that terminated his parental rights. In re H.F.,
176 Ohio App. 3d 106, 2008-Ohio-1627, 890 N.E.2d 341, ¶ 32. Concluding that
the trial court violated Juv.R. 29(D) when accepting appellee’s admissions, the
court of appeals reversed the adjudication orders, held appellee’s remaining
assignments of error moot, and remanded the matter for further proceedings. Id.
at ¶ 45, 47.
{¶ 5} At the request of CCDCFS, the Eighth District Court of Appeals
certified its decision as being in conflict with the Fourth District Court of Appeals
decision of In re P.N.M., 4th Dist. Nos. 07CA841 and 07CA842, 2007-Ohio-
4976, and the Twelfth District Court of Appeals decision of In re C.G., 12th Dist.
Nos. CA2007-03-005 and CA2007-03-006, 2007-Ohio-4361, on the following
issue: “Whether App.R. 4(B)(5) provides an exception to App.R. 4(A), and
authorizes an appeal of an adjudication order, determining abuse, neglect, or
dependency, alternatively thirty days after the court renders a final order on all
issues in the case, including final disposition as to parental rights.”
{¶ 6} We accepted the conflict and CCDCFS’s discretionary appeal on
the same issue.
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SUPREME COURT OF OHIO
Final Order
{¶ 7} Section 3(B)(2), Article IV of the Ohio Constitution states that
appellate courts have jurisdiction only over the judgments or final orders of
inferior courts. R.C. 2501.02 specifically provides appellate courts with
jurisdiction “upon an appeal upon questions of law to review, affirm, modify, set
aside, or reverse judgments or final orders of courts of record inferior to the court
of appeals within the district, including the finding, order, or judgment of a
juvenile court that a child is delinquent, neglected, abused, or dependent, for
prejudicial error committed by such lower court.”
{¶ 8} A “final order” (1) “affects a substantial right in an action that in
effect determines the action and prevents a judgment”; (2) “affects a substantial
right made in a special proceeding or upon a summary application in an action
after judgment”; (3) “vacates or sets aside a judgment or grants a new trial”; (4)
“grants or denies a provisional remedy” that “prevents a judgment in the action in
favor of the appealing party with respect to the provisional remedy” and denies “a
meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action”; (5) “determines that an
action may or may not be maintained as a class action”; (6) determines “the
constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281
of the 124th general assembly”; or (7) results from “an appropriation proceeding
that may be appealed” pursuant to R.C. 163.09(B)(3). R.C. 2505.02(B). This
court discussed whether a juvenile court’s adjudication order could be a
substantial right that determined an action as set forth in the first definition of
final orders in In re Murray (1990), 52 Ohio St. 3d 155, 556 N.E.2d 1169.5 We
5. When In re Murray was decided, R.C. 2505.02 defined “final order” as “[a]n order that affects
a substantial right in an action which in effect determines the action and prevents a judgment, an
order that affects a substantial right made in a special proceeding or upon a summary application
in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial
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January Term, 2008
held, “An adjudication by a juvenile court that a child is ‘neglected’ or
‘dependent’ as defined by R.C. Chapter 2151 followed by a disposition awarding
temporary custody to a public children services agency pursuant to R.C.
2151.353(A)(2) constitutes a ‘final order’ within the meaning of R.C. 2505.02 and
is appealable to the court of appeals pursuant to R.C. 2501.02.” Id. at syllabus.
{¶ 9} In this case, the juvenile court filed a journal entry that approved
the magistrate’s decision finding H.F. to be neglected and placing him in the
temporary custody of CCDCFS on June 5, 2006. A similar journal entry that
approved the magistrate’s decision that R.F. was abused, neglected, and
dependent and placing her in temporary custody was filed on June 7, 2006.
Pursuant to In re Murray and R.C. 2505.02, these entries are final orders.
Time to Appeal
{¶ 10} Generally, an appeal of a judgment or final order must be filed
within 30 days from the entry of the judgment or order. App.R. 4(A). Under this
rule, appellee should have appealed the juvenile court’s order concerning
adjudication of abuse, dependency, or neglect and the grant of temporary custody
by July 5, 2006, for H.F. and by July 7, 2006, for R.F.; appellee, however, did not
file his notices of appeal until August 13, 2007, three days after the juvenile court
terminated his parental rights. In many appellate districts, his appeal of the
adjudication issues would have been dismissed as untimely. See In re Harris, 1st
Dist. No. C-020512, 2003-Ohio-672, ¶ 12; In re P.N.M., 4th Dist. Nos. 07CA841
and 07CA842, 2007-Ohio-4976, ¶ 39-40; In re Calvert Children, 5th Dist. Nos.
05-CA-19 and 05-CA-20, 2005-Ohio 5653, ¶ 29-30; In re Christopher B. (July 3,
1997), 6th Dist. No. L-96-046, 1997 WL 379631, *4; In re A.L., 10th Dist. Nos.
07AP-638 and 07AP-647, 2008-Ohio-800, ¶ 43; In re C.G., 12th Dist. Nos.
CA2007-03-005 and CA2007-03-006, 2007-Ohio-4361, ¶ 11-12. The Eighth
is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial.”
Am.Sub.H.B. No. 412, 141 Ohio Laws, Part II, 3563, 3597.
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SUPREME COURT OF OHIO
District Court of Appeals, however, held that the exception to the 30-day rule in
App.R. 4(B)(5) applied, providing appellee a second opportunity to appeal the
adjudication orders within 30 days of the entry of the juvenile court’s August 10,
2007 orders placing H.F. and R.F. in the permanent custody of CCDCFS.
{¶ 11} App.R. 4(B)(5) provides: “Partial final judgment or order. If an
appeal is permitted from a judgment or order entered in a case in which the trial
court has not disposed of all claims as to all parties, other than a judgment or
order entered under Civ.R. 54(B) [which addresses judgment upon multiple
claims or involving multiple parties], a party may file a notice of appeal within
thirty days of entry of the judgment or order appealed or the judgment or order
that disposes of the remaining claims. Division (A) of this rule applies to a
judgment or order entered under Civ.R. 54(B).” We adopted this subsection in
1992 following the review we recommended in Dayton Women’s Health Ctr. v.
Enix (1990), 52 Ohio St. 3d 67, 70, 555 N.E.2d 956, fn. 3, due to the difficulties
that attorneys were having in determining whether a partial final judgment or
order met the requirements of R.C. 2505.02 in class action suits, as set forth in
Amato v. Gen. Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O.3d 158, 423
N.E.2d 452. 1992 Staff Note to App.R. 4, 64 Ohio St. 3d CXXXI. “[App.R.
4(B)(5)] is designed for situations such as an order affecting a substantial right
made in a special proceeding * * *.” Grabill v. Worthington Industries, Inc.
(1993), 91 Ohio App. 3d 469, 473, 632 N.E.2d 997.
{¶ 12} For App.R. 4(B)(5) to apply, an order must meet two requirements:
(1) it must be a final order that does not dispose of all claims for all parties, and
(2) it must not be entered under Civ.R. 54(B). Here, we have already determined
that the June 2006 adjudication orders are final orders. The next question is
whether the adjudication orders are partial final orders — that is, whether any
claim remained pending between the parties following the juvenile court’s
adjudication order of neglect, abuse, and dependency and grant of temporary
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January Term, 2008
custody of the two children to CCDCFS. We conclude that there was not and,
therefore, that App.R. 4(B)(5) does not apply.
{¶ 13} The complaints filed by CCDCFS asked for two things: (1) a
finding of abuse, neglect, and/or dependency and (2) a grant of temporary custody
to the agency. The June 2006 adjudication orders resolved both of these issues in
favor of CCDCFS. As we noted in In re Murray, “the designation of the custody
award as ‘temporary’ is not controlling.” 52 Ohio St. 3d at 157, 556 N.E.2d 1169.
Although some future action is contemplated in a temporary custody order, the
immediate action between the parties is concluded. Id. at 158.
{¶ 14} Bolstering the idea of complete finality, we also note that there is
no assurance that a parent would have an alternative opportunity to appeal an
adjudication order. As we recently reiterated in In re Adams, 115 Ohio St. 3d 86,
2007-Ohio-4840, 873 N.E.2d 886, ¶ 44, a children services agency is not required
to seek permanent custody unless statutorily required to do so under R.C.
2151.413(D)(1). A children services agency has several options upon the
expiration of a temporary custody order besides seeking permanent custody. It
can request that the child be returned home without any restrictions; be placed
under protective supervision; be placed in the legal custody of a relative or other
interested individual; or be placed in a planned permanent living arrangement.
R.C. 2151.415.
{¶ 15} Furthermore, the neglect, abuse, and dependency finding and the
award of temporary custody are not subject to readjudication if a children services
agency later seeks permanent custody of the child. R.C. 2151.414(A). These
factors, which led us to conclude in In re Murray that “a finding of neglect or
dependency followed by a disposition awarding temporary custody to a public
children services agency pursuant to R.C. 2151.353(A)(2) is an order which, in
effect, determines the action,” also lead us to conclude that there are no issues left
pending after a juvenile court issues an adjudication order. Murray, 52 Ohio
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St.3d at 159, 556 N.E.2d 1169. Therefore, App.R. 4(B)(5) does not apply to
adjudication orders that include a finding of neglect, abuse, or dependency and a
grant of temporary custody to a children services agency.
{¶ 16} Appellee’s argument that issues remain pending because the
juvenile court retains jurisdiction over the case and is required to conduct reviews
of a children services agency’s case plan for the child is not persuasive. These
obligations do not involve an active controversy or claim between the parents and
the children services agency. They arise out of the children services agency’s
designation as the child’s legal custodian and remain part of the juvenile court’s
duty to determine the child’s best interests. They continue even after a children
services agency has been granted permanent custody. R.C. 2151.415(E).
{¶ 17} Appellee raises a number of policy reasons for allowing more than
one opportunity to appeal the award of temporary custody based on a finding of
abuse, dependency, or neglect,6 which we reject. App.R. 4 governs the timing of
appeals and must be carefully followed because failure to file a timely notice of
appeal under App.R 4(A) is a jurisdictional defect. State ex rel. Pendell v. Adams
Cty. Bd. of Elections (1988), 40 Ohio St. 3d 58, 60, 531 N.E.2d 713. We are not
abrogating the right to appeal a juvenile court’s adjudication order but simply
clarifying when an appeal of this type must be filed: within 30 days of the entry of
the adjudication order. Furthermore, even if no one appeals an adjudication order
entered pursuant to R.C. 2151.353(A)(2), the parent still retains the right to appeal
any award of permanent custody to a children services agency, and that appeal
would include issues that arose after the adjudication order.
Conclusion
6. For example, appellee argues that the Appellate Rules should be construed to favor the right of
appeal, that parents in permanent custody actions should be given “ ‘every procedural and
substantive protection the law allows,’ ” In re Hayes (1997), 79 Ohio St. 3d 46, 48, 679 N.E.2d
680, quoting In re Smith (1991), 77 Ohio App. 3d 1, 16, 601 N.E.2d 45, and that few appeals are
taken from adjudication orders because parents want to stay on good terms with children services
agencies.
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January Term, 2008
{¶ 18} We answer the certified question in the negative and hold that an
appeal of an adjudication order of abuse, dependency, or neglect of a child and the
award of temporary custody to a children services agency pursuant to R.C.
2151.353(A)(2) must be filed within 30 days of the judgment entry pursuant to
App.R. 4(A). The judgment of the Cuyahoga County Court of Appeals is
reversed, and the case is remanded to that court for resolution of appellee S.F.’s
remaining assignments of error.
Judgment reversed
and cause remanded.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR, and CUPP,
JJ., concur.
O’DONNELL, J., concurs in judgment only.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, and Joseph
C. Young, Assistant Prosecuting Attorney, for appellant, Cuyahoga County
Department of Children and Family Services.
Jonathan N. Garver, for appellee, S.F..
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